Hotel ballrooms among venues being considered for socially distanced jury trials in Sask.

Jury trials in Saskatchewan could be held in hotel ballrooms or unused educational buildings starting in September to overcome challenges that make courthouses ill-suited to the task in the era of COVID-19.

The Ministry of Justice is in the process of exploring "offsite" venues as interim alternatives to courthouses, which are not designed to accommodate social distancing.

"Juries traditionally sit shoulder-to-shoulder in a jury box where they hear cases, and when they deliberate they go into a jury deliberation room where they again sit shoulder-to-shoulder," said Saskatchewan Chief Justice Martel Popescul on Thursday. 

"We have 11 courthouses in the province where jury trials can be held and some of these courthouses — for example, Moose Jaw and Battleford — are small and they are 100 years old, so the builders of these facilities undoubtedly did not have COVID-19 in mind."

The ministry said there are no immediate plans to hold court in locations other than courthouses.

"We continue to explore what options may exist for future trials," it said a written response to questions.  

Courts in Saskatchewan began postponing jury trials and shutting down regular operations in mid-March, in response to the pandemic. Some of those restrictions began to lift last month, and Popescul said Saskatchewan courts are planning to resume jury trials in early September. 

"We have to look at security, we have to look at public access, we have to look at ensuring that the jurors are able to see and hear what's going on … yet [be] far enough away that we can respect the boundaries mandated by social-distancing rules," said Popescul.  

Details such as the use of masks and how juries will deliberate as a group are still being refined, he said. 

Jury selections for larger cases or those with multiple accused have taken place offsite in the past, but traditionally, the case moves back into the courtroom for the trial itself.  

Nine jury trials that were scheduled to take place in March, April, May and June have been postponed until the fall. 

'It's important for us to get the word out that people can and should … respond to jury summonses, and that when they do, they can rest assured that [we] have taken precautions to make sure that they will be safe.- Saskatchewan Chief Justice Martel Popescul

Popescul said one of the biggest challenges is uncertainty. 

"The question, of course, is how long will the social distancing requirement remain in effect … will there be a second wave?" he said. 

"It's difficult to plan in advance for the future when the ground upon which one is walking is currently shifting." 

Once Saskatchewan's court system is confident jury trials can resume safely, the chief justice said the next hurdle will be convincing potential jurors that it is safe. 

"It's important for us to get the word out that people can and should and must respond to jury summonses, and that when they do, they can rest assured that the court system and the Ministry of Justice have taken precautions to make sure that they will be safe," said Popescul. 

"We're not going to put the message out there unless we can back it up, and we are currently working on ensuring that we have a number of very strict protocols put in place." 

COVID-19 could push cases past deadlines

A Supreme Court of Canada decision from 2016, known as R. v. Jordan, establishes deadlines for when a trial must be heard. 

In provincial court cases, the accused has a right to a trial within 18 months from when charges are laid, while those that go through the Court of Queen's Bench are allowed 30 months after charges are laid. 

If COVID-19 delays push a case over those deadlines, defence lawyers could file an application for the case to be dismissed on the basis it did not occur within a reasonable period of time.

"Then it will be up to one of our judges to determine whether or not that is the case and, if so, how a global pandemic fits into the mix — whether it's ignored or what effect it will have," said Popescul. 

He is not aware of any Jordan applications being filed due to COVID-19 in Saskatchewan to date. 

Saskatoon defence lawyer Mike Nolin said he doesn't think cases will be dismissed under the Jordan rules, because there is an exemption in the ruling for exceptional circumstances. 

"It's unfortunate for the defendants but my gut feeling is the courts are going to say this fits squarely in the exemption contemplated by Jordan," he said. 

"Now if we're talking about November and December and we're still having problems holding trials because [court services] haven't secured enough offsite locations, then maybe my opinion might change." 

COVID-19 safety measures have left his clients disadvantaged by reduced face-to-face access to their lawyers, cuts to programming behind bars and suspension of in-person family visits, Nolin said.

But he thinks the Saskatchewan courts and the Ministry of Justice are doing the best they can in a difficult situation. 

"The government has to be given some turnaround time to be able to complete the logistics of all this," said Nolin. 

He also noted provincial court proceedings are already held in buildings that are not courthouses in rural and remote parts of Saskatchewan, such as a hockey rink in Pelican Narrows.

'Integrity of the process' is key

Popescul said it would be an understatement to say that adapting the judicial system in Saskatchewan to operate in a pandemic has been a "challenge." 

Several years ago, he took part in a seminar held by the National Judicial Institute about how to judge through a pandemic. 

"It was not something that I was counting on … but it was certainly in the back of my mind as a possibility," said Popescul, who added technology that has been used to keep courtrooms running during the COVID-19 pandemic wasn't available when he took the seminar. 

He pointed to the aftermath of the Sept. 11 attacks in 2001 as another example of courthouses having to adapt after world events. 

Earlier in the current pandemic, he said there were suggestions that the Saskatchewan court system was either not doing enough to respond to COVID-19, or that it was doing too much. 

Despite the difficulties, he thinks the courts have been able to step up to the challenge, noting they have continued to accommodate urgent cases throughout the pandemic.

Preparing for jury trials is the next step, he said.

"What needs to be kept in mind … is the rule of law and the integrity of the process. So whatever process and whatever venue is chosen, we have to make sure that the fundamental values of the jury trial system in Saskatchewan in Canada are respected."